Vol. 4, No. 1 | December 2009

Upcoming Cases: Police Practices Cases To Be Decided in the Current Term of the U.S. Supreme Court

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu  

            The U.S. Supreme Court has one term of court each year.  The term begins on the first Monday in October and usually ends about the end of June.  Throughout the year, the Court decides which cases to hear out of the hundreds of requests for review it receives each year.  The Court usually accepts a case for decision by granting a party’s petition for a writ of certiorari.  In recent years, the Court has been deciding between 80 and 90 cases with opinions (a very small percentage of the requests it receives).

            Early in each term, the Court grants certiorari in cases that it will decide during that term and places them on the Court’s docket (schedule) for oral argument.  By January or February, however, the Court’s docket for that term is typically full.  Nevertheless, the Court still grants certiorari in some cases during the current term and places them on the docket for the next term.

            When the Court concluded its term in late June, it had granted certiorari in 45 cases to be heard in the term that began on October 5, 2009.  Three of those cases involve issues related to police practices.  (Of course, the Court will continue to review petitions for a writ of certiorari and will add more cases to its 2009-10 docket.  The Court might add a few more police practices cases to that docket). 

Maryland v. Shatzer

            In this case, the police attempted to interrogate Shatzer about an alleged sexual assault of his step-daughter while he was incarcerated for another sexual assault.  Shatzer invoked his right to counsel, indicating that he wanted to consult with an attorney.  When a suspect invokes his right to counsel under circumstances such as this, the so-called Edwards Rule arises.  That rule states that after a suspect has invoked his right to counsel, the police may not interrogate the suspect further unless counsel is present or the suspect initiates further discussion about the case with the police and then waives his right to counsel.

            Nearly two and a half years after Shatzer invoked his right to counsel, the police visited Shatzer in prison and attempted to question him again about the alleged sexual assault of his step-daughter.  This time Shatzer agreed to talk with the police and incriminated himself in some statements he made to the police.  Many courts have interpreted the Edwards Rule as meaning that the rule continues to forbid police interrogation without counsel present so long as the suspect who invoked the right remains in custody.  The issue is whether the Edwards Rule was violated by this interrogation of Shatzer in prison.

Alvarez v. Smith

            The Chicago Police Department seized an automobile belonging to the plaintiffs in this case under an Illinois statute that permits law enforcement officials to seize without a warrant property that they have probable cause to think was involved in the commission of a drug crime and to subject that property to forfeiture.  The legality of the seizure would be tested in a legal proceeding that state officials would have to institute before the property could be forfeited to the state.  The Illinois statute provides that the state’s attorney must be notified that property has been seized by law enforcement officials within 52 days of its seizure.  If the property is worth more than $20,000, the state’s attorney must commence the forfeiture proceeding within 45 days of receiving this notice.  If the property is worth less than $20,000, the state’s attorney must notify the property owner within 45 days that forfeiture proceedings are likely, and the property owner then has 45 days to file a claim to the property.  If such a claim is filed, the state’s attorney would have another 45 days to commence the forfeiture proceeding.  Thus, depending on the value of the property, the government would have to take action to have the property forfeited within either 97 days or 187 days of the seizure of the property.

            The primary issue in the case is whether the Due Process Clause of the Fourteenth Amendment to the Constitution requires a more prompt hearing on the issue of whether the police had probable cause to seize the automobile.  The Seventh Circuit Court of Appeals held that a more prompt hearing is required, although it left it to the trial court on remand to establish the details, including the length of time after seizure in which the probable cause hearing must take place.

Florida v. Powell

            Miranda v. Arizona was decided by the Supreme Court more than forty years ago.  There are several generalizations about the present status of that case that can be made fairly.  First, the decision remains controversial.  Second, the Court’s decision in Dickerson v. U.S.  not to overturn Miranda suggests that the basic rules established by Miranda are probably here to stay.  Third, in most of the cases decided by the Court determining the scope of Miranda, the Court has been decidedly unenthusiastic about the decision.  It has usually decided against rulings that would have given Miranda the full impact that many people envisioned for it.  For example, the Court has held that an un-Mirandized confession can be used to impeach the testimony of the person from whom the police obtained it; that the warnings required by Miranda do not have to be given when a compelling public safety need exists; and that the fruit of the poisonous tree doctrine does not extend to “mere” Miranda violations (where a confession was obtained in violation of the Miranda rules, but the confession was otherwise voluntary).  And fourth, there still are some rather basic questions about the Miranda rules that the Court has not addressed.

            One of those basic questions will be addressed in this term of the Court.  In Florida v. Powell, the police advised Powell before questioning him that he had a right to consult with an attorney prior to the questioning.  The police did not advise him that he had a right to have an attorney present during the questioning.

            In Miranda the Court said:  “[a suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”  The Court also indicated that “an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation.”

            Thus, the question presented in Powell is whether the failure of the police to inform a suspect prior to custodial interrogation that the suspect has a right not only to consult an attorney but to have the attorney present during questioning makes any statement obtained from the suspect inadmissible at his trial.  Although the language from Miranda quoted above would seem to suggest that the suspect must be advised that he has a right to have an attorney present during the questioning, the propensity of the Court to take a narrow approach to the scope of Miranda makes the outcome in this case far from certain.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.